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There's No Such Thing as an Oral Order

What if a trial judge announces an order on the record, then goes home and has a change of heart? Sure, he already told the lawyers and the litigants that Mother can have the custody of the kids, but he did not actually put it in writing. Can the judge back out? If  he said that custody goes to Mother, can he wake up the next day and write an order giving custody to Father?

The Court of Appeals today spoke plainly on the subject.

Somewhat surprisingly, the answer is “yes.”  The oral pronouncement means nothing at all. The written order can be entirely different. The trial court judge can change his mind 180 degrees.

In SCOGGIN v. SCOGGIN, the trial court orally announced its disposition at the end of a custody trial: “custody to mother.” But the written order gave custody to father. Which is fine, said the Court of Appeals. As of today, a complete change of heart is the trial court’s prerogative.



What does Scoggin mean for the trial lawyers and appellate practitioners?

For one thing, the Scoggin decision emphasizes the point (which this humble blog has been tirelessly repeating for years, and which The Lawyers Weekly recently explained quite plainly) that the trial lawyers should stop yielding to the oft-made demands to comply with oral “orders.” (Still, the pressure to “do what the judge told us to do” is way too common.) After Scoggin, it is clear that there is no telling what the judge “told us to do” until the judge writes it down. In some ways, the trial lawyer’s job may have become easier. Or at least more clear.

For the appellate lawyers, though, the process just became a little less clear. Scoggin is the second nail in the coffin of the long-standing practice of filing the Notice of Appeal right after the oral order, and waiting for the written order to catch up with the record. Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997) had authorized this convenient practice since—well—at least 1997. However, earlier this year, the Court of Appeals surprised the practitioners when it dismissed an appeal that did just that—had the Notice of Appel filed first and added the written order to the record when it was finally handed down. (MANNISE v. HARRELL)

The appellate process became less clear in light of the Mannise-Scoggin new line of cases. If one finds oneself in need of appealing before a written order is handed, should one file an amended Notice of Appeal after the written order? What if the written order is altogether different? Should one dismiss the appeal and start over?

Or, perhaps, the best lesson here is the power of positive thinking.

Indeed, by the time the written order comes down, one might find—as did the Father in Scoggin—that no appeal is needed at all, because what was a loss turned out to be a win!

What are your thoughts?